FILED SEPTEMBER 22, 2016 In the Office of the Clerk of Court WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
JESUS OROZCO, ) No. 33808-8-111 ) Appellant, ) ) v. ) UNPUBLISHED OPINION ) DEPARTMENT OF LABOR AND ) INDUSTRIES, ) ) Respondent. )
LAWRENCE-BERREY, A.CJ. -Jesus Orozco appeals the superior court's decision
denying his request to reopen his 2006 industrial injury claim. In addition to other issues,
he argues the superior court erred when it found his 2006 injury did not proximately cause
his mental health conditions. Because this issue is dispositive, we do not address the
other issues he raises. We hold that substantial evidence supports the superior court's
finding, and affirm.
FACTS
On April 25, 2006, Mr. Orozco injured his head while working for Goodwill
Industries. Mr. Orozco was loading a box into a truck when a coworker closed the truck's No. 33808-8-III Orozco v. Dep 't ofLabor & Indus.
overhead metal door and struck Mr. Orozco's head. The door injured Mr. Orozco's face,
head, neck, and lower back. Mr. Orozco filed a workers' compensation claim. The
Department of Labor & Industries (Department) allowed the claim and determined Mr.
Orozco was entitled to time-loss compensation and medical treatment. While Mr. Orozco
was receiving benefits, he was examined by Dr. James Haynes, a neurologist, and Dr.
Lanny Snodgrass, a psychiatrist. On July 29, 2009, the Department determined treatment
was no longer necessary and closed the claim.
In August 2011, Mr. Orozco filed an aggravation application to reopen his claim.
On October 3, 2011, the Department denied his application on the basis that the medical
condition caused by the injury had not worsened since the final claim closure. Mr.
Orozco appealed the Department's order to the Board of Industrial Insurance Appeals
(Board), which granted his appeal. After he appealed the Department's order, Mr.
Orozco was examined by Dr. Silverio Arenas, a clinical psychologist.
At the Board hearing, Mr. Orozco and his wife both testified, and Mr. Orozco
presented Dr. Arenas's deposition testimony. Dr. Arenas testified that he examined Mr.
Orozco in January 2012 and in March 2012. He determined Mr. Orozco was cognitively
compromised either because of pain, emotional factors, or possibly because of post-
concussive syndrome, which is a collection of symptoms that affect a person after he or
2 No. 33808-8-III Orozco v. Dep 't ofLabor & Indus.
she has suffered a concussion. He diagnosed Mr. Orozco with four mental health
conditions: a cognitive disorder, anxiety disorder, pain disorder, and depressive disorder.
Dr. Arenas did not believe Mr. Orozco was malingering.
Dr. Arenas further testified that Mr. Orozco did not have these conditions before
his injury, and that these four conditions began in April 2006 when Mr. Orozco was
injured and continued through the present. Other than the injury, Dr. Arenas did not see
any other causes for the conditions. Finally, Dr. Arenas testified that Mr. Orozco's
mental health conditions had worsened between the terminal dates. He believed Mr.
Orozco had been deteriorating since his injury and would continue to deteriorate into the
future.
The Department presented the deposition testimony of Dr. Haynes, the
neurologist. 1 Dr. Haynes testified he examined Mr. Orozco in April 2009 and in
September 2011. During the 2009 examination, Dr. Haynes noted that Mr. Orozco
exhibited "dramatic pain behavior," which was not consistent with the residuals of any
injury. Clerk's Papers (CP) at 178. Dr. Haynes did not "want to say malingering," but
1 Mr. Orozco argues that this court cannot consider Dr. Haynes' s testimony because his injury caused a psychiatric condition and Dr. Haynes is a neurologist. Mr. Orozco preserved this issue for review by raising it before the industrial appeals judge (IAJ), who denied his argument. For purposes of this particular appeal, we need not accord Dr. Haynes' s testimony any weight.
3 No. 33808-8-III Orozco v. Dep 't ofLabor & Indus.
called it a "performance such as you would see on a Broadway stage, as opposed to the
product of any injury or disease or condition." CP at 179. Dr. Haynes questioned
whether a relatively minor head injury would result in an "ever-progressing and spreading
total body pain, resulting in total disability, unsupported by any neuroimaging." CP at
187.
With regard to his 2011 examination, Dr. Haynes testified that "[t]he pain was a
little more extensive," and "it seemed like things were getting worse." CP at 181-82.
When asked whether Mr. Orozco's conditions objectively worsened between the terminal
dates, Dr. Haynes testified that they had not. When asked about Dr. Arenas's cognitive
disorder diagnosis, Dr. Haynes testified that he would defer the cognitive discussion to a
psychiatrist but that he did not see a neurological basis for Dr. Arenas's diagnosis.
Finally, he noted there was really nothing wrong with Mr. Orozco, other than the fact that
Mr. Orozco had a major psychological collapse.
The Department also presented the deposition testimony of Dr. Snodgrass, the
psychiatrist. Dr. Snodgrass testified he examined Mr. Orozco in November 2007 and in
April 2009. When asked whether he was able to come to a diagnosis during the 2007
examination and, if so, whether the diagnosis was related to the industrial injury, Dr.
Snodgrass testified there was no major psychiatric diagnosis for Mr. Orozco. Dr.
4 No. 33808-8-III Orozco v. Dep 't ofLabor & Indus.
Snodgrass then opined that Mr. Orozco "did not have a psychiatric condition that was
causally related to the current injury on a more-probable-than-not basis, and that
malingering, in accordance with a detailed examination, had to be seriously considered."
CP at 223-24. He testified "there was no clear evidence of a cognitive disorder related to
a closed-head injury." CP at 224.
With regard to his April 2009 examination, Dr. Snodgrass testified that he noted
"[n]o significant neuropsychological residuals stemming from the industrial injury of
04/25/06." CP at 234. He reiterated "there was no psychiatric condition that was causally
related to the covered injury." CP at 236. Dr. Snodgrass perceived other factors
weighing in, but these were unrelated to the injury. Dr. Snodgrass reviewed Dr. Arenas's
psychological evaluation and disagreed with Dr. Arenas's diagnoses. Finally, Dr.
Snodgrass assumed that Mr. Orozco's psychiatric conditions were the same in October
2011 as they were when he last examined him in 2009, assuming no changes in variables.
But Dr. Snodgrass was unable to provide a meaningful opinion as to Mr. Orozco's
condition in 2011, and stated that he "[could not] say for sure" and there was "no way of
knowing" without actually seeing Mr. Orozco. CP at 251.
Following the hearing, the IAJ issued a proposed decision and order finding that
Mr. Orozco's industrial injury did not proximately cause his mental health conditions and
5 No. 33808-8-III Orozco v. Dep 't of Labor & Indus.
that these conditions did not worsen between the two terminal dates. Accordingly, the
IAJ affirmed the Department's order that denied reopening Mr. Orozco's claim. Mr.
Free access — add to your briefcase to read the full text and ask questions with AI
FILED SEPTEMBER 22, 2016 In the Office of the Clerk of Court WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
JESUS OROZCO, ) No. 33808-8-111 ) Appellant, ) ) v. ) UNPUBLISHED OPINION ) DEPARTMENT OF LABOR AND ) INDUSTRIES, ) ) Respondent. )
LAWRENCE-BERREY, A.CJ. -Jesus Orozco appeals the superior court's decision
denying his request to reopen his 2006 industrial injury claim. In addition to other issues,
he argues the superior court erred when it found his 2006 injury did not proximately cause
his mental health conditions. Because this issue is dispositive, we do not address the
other issues he raises. We hold that substantial evidence supports the superior court's
finding, and affirm.
FACTS
On April 25, 2006, Mr. Orozco injured his head while working for Goodwill
Industries. Mr. Orozco was loading a box into a truck when a coworker closed the truck's No. 33808-8-III Orozco v. Dep 't ofLabor & Indus.
overhead metal door and struck Mr. Orozco's head. The door injured Mr. Orozco's face,
head, neck, and lower back. Mr. Orozco filed a workers' compensation claim. The
Department of Labor & Industries (Department) allowed the claim and determined Mr.
Orozco was entitled to time-loss compensation and medical treatment. While Mr. Orozco
was receiving benefits, he was examined by Dr. James Haynes, a neurologist, and Dr.
Lanny Snodgrass, a psychiatrist. On July 29, 2009, the Department determined treatment
was no longer necessary and closed the claim.
In August 2011, Mr. Orozco filed an aggravation application to reopen his claim.
On October 3, 2011, the Department denied his application on the basis that the medical
condition caused by the injury had not worsened since the final claim closure. Mr.
Orozco appealed the Department's order to the Board of Industrial Insurance Appeals
(Board), which granted his appeal. After he appealed the Department's order, Mr.
Orozco was examined by Dr. Silverio Arenas, a clinical psychologist.
At the Board hearing, Mr. Orozco and his wife both testified, and Mr. Orozco
presented Dr. Arenas's deposition testimony. Dr. Arenas testified that he examined Mr.
Orozco in January 2012 and in March 2012. He determined Mr. Orozco was cognitively
compromised either because of pain, emotional factors, or possibly because of post-
concussive syndrome, which is a collection of symptoms that affect a person after he or
2 No. 33808-8-III Orozco v. Dep 't ofLabor & Indus.
she has suffered a concussion. He diagnosed Mr. Orozco with four mental health
conditions: a cognitive disorder, anxiety disorder, pain disorder, and depressive disorder.
Dr. Arenas did not believe Mr. Orozco was malingering.
Dr. Arenas further testified that Mr. Orozco did not have these conditions before
his injury, and that these four conditions began in April 2006 when Mr. Orozco was
injured and continued through the present. Other than the injury, Dr. Arenas did not see
any other causes for the conditions. Finally, Dr. Arenas testified that Mr. Orozco's
mental health conditions had worsened between the terminal dates. He believed Mr.
Orozco had been deteriorating since his injury and would continue to deteriorate into the
future.
The Department presented the deposition testimony of Dr. Haynes, the
neurologist. 1 Dr. Haynes testified he examined Mr. Orozco in April 2009 and in
September 2011. During the 2009 examination, Dr. Haynes noted that Mr. Orozco
exhibited "dramatic pain behavior," which was not consistent with the residuals of any
injury. Clerk's Papers (CP) at 178. Dr. Haynes did not "want to say malingering," but
1 Mr. Orozco argues that this court cannot consider Dr. Haynes' s testimony because his injury caused a psychiatric condition and Dr. Haynes is a neurologist. Mr. Orozco preserved this issue for review by raising it before the industrial appeals judge (IAJ), who denied his argument. For purposes of this particular appeal, we need not accord Dr. Haynes' s testimony any weight.
3 No. 33808-8-III Orozco v. Dep 't ofLabor & Indus.
called it a "performance such as you would see on a Broadway stage, as opposed to the
product of any injury or disease or condition." CP at 179. Dr. Haynes questioned
whether a relatively minor head injury would result in an "ever-progressing and spreading
total body pain, resulting in total disability, unsupported by any neuroimaging." CP at
187.
With regard to his 2011 examination, Dr. Haynes testified that "[t]he pain was a
little more extensive," and "it seemed like things were getting worse." CP at 181-82.
When asked whether Mr. Orozco's conditions objectively worsened between the terminal
dates, Dr. Haynes testified that they had not. When asked about Dr. Arenas's cognitive
disorder diagnosis, Dr. Haynes testified that he would defer the cognitive discussion to a
psychiatrist but that he did not see a neurological basis for Dr. Arenas's diagnosis.
Finally, he noted there was really nothing wrong with Mr. Orozco, other than the fact that
Mr. Orozco had a major psychological collapse.
The Department also presented the deposition testimony of Dr. Snodgrass, the
psychiatrist. Dr. Snodgrass testified he examined Mr. Orozco in November 2007 and in
April 2009. When asked whether he was able to come to a diagnosis during the 2007
examination and, if so, whether the diagnosis was related to the industrial injury, Dr.
Snodgrass testified there was no major psychiatric diagnosis for Mr. Orozco. Dr.
4 No. 33808-8-III Orozco v. Dep 't ofLabor & Indus.
Snodgrass then opined that Mr. Orozco "did not have a psychiatric condition that was
causally related to the current injury on a more-probable-than-not basis, and that
malingering, in accordance with a detailed examination, had to be seriously considered."
CP at 223-24. He testified "there was no clear evidence of a cognitive disorder related to
a closed-head injury." CP at 224.
With regard to his April 2009 examination, Dr. Snodgrass testified that he noted
"[n]o significant neuropsychological residuals stemming from the industrial injury of
04/25/06." CP at 234. He reiterated "there was no psychiatric condition that was causally
related to the covered injury." CP at 236. Dr. Snodgrass perceived other factors
weighing in, but these were unrelated to the injury. Dr. Snodgrass reviewed Dr. Arenas's
psychological evaluation and disagreed with Dr. Arenas's diagnoses. Finally, Dr.
Snodgrass assumed that Mr. Orozco's psychiatric conditions were the same in October
2011 as they were when he last examined him in 2009, assuming no changes in variables.
But Dr. Snodgrass was unable to provide a meaningful opinion as to Mr. Orozco's
condition in 2011, and stated that he "[could not] say for sure" and there was "no way of
knowing" without actually seeing Mr. Orozco. CP at 251.
Following the hearing, the IAJ issued a proposed decision and order finding that
Mr. Orozco's industrial injury did not proximately cause his mental health conditions and
5 No. 33808-8-III Orozco v. Dep 't of Labor & Indus.
that these conditions did not worsen between the two terminal dates. Accordingly, the
IAJ affirmed the Department's order that denied reopening Mr. Orozco's claim. Mr.
Orozco petitioned the Board for review. The Board denied Mr. Orozco's petition and
adopted the IAJ's proposed decision and order.
Mr. Orozco appealed the Board's order to the superior court. The superior court
reviewed the certified Board record, including the experts' depositions, the Board's order,
and the Department's trial memorandum. In its findings of fact, the superior court found
that
[o]n a more-probable-than-not basis the mental health conditions described as: cognitive disorder; anxiety disorder; pain disorder with both psychological factors and a general medical condition; depressive disorder; and malingering were not proximately caused by the industrial injury and did not worsen between July 29, 2009 and October 3, 2011.
CP at 268. Accordingly, the superior court concluded that "[b]etween July 29, 2009 and
October 3, 2011, Jesus Orozco's conditions proximately caused by the industrial injury
did not worsen within the meaning ofRCW 51.32.160." CP at 268. The superior court
concluded the Department's order was correct, and affirmed the Board's decision denying
reopening of Mr. Orozco's claim. Mr. Orozco appeals to this court.
6 No. 33808-8-111 Orozco v. Dep 't ofLabor & Indus.
ANALYSIS
The Industrial Insurance Act (IIA), Title 51 RCW, governs review of workers'
compensation cases. The superior court reviews the Board's order de novo, and its
review is based solely on the evidence and testimony presented to the Board.
RCW 51.52.115. On appeal to the superior court, the Board's decision is prima facie
correct, and a party challenging the decision must support its challenge by a
preponderance of the evidence. RCW 51.52.115.
A. STANDARD OF REVIEW
This court reviews the superior court's decision, not the Board's order.
RCW 51.52.140. This court reviews the superior court's decision the same way it does
other civil cases. Id.; Mason v. Georgia-Pac. Corp., 166 Wn. App. 859,863,271 P.3d
381 (2012). This court reviews whether substantial evidence supports the superior court's
factual findings and then reviews de novo whether the superior court's conclusions oflaw
flow from those findings. Rogers v. Dep 't ofLabor & Indus., 151 Wn. App. 174, 180,
210 P.3d 355 (2009). Substantial evidence exists when the evidence in the record is
sufficient to persuade a rational, fair-minded person that the finding is true. Cantu v.
Dep 't of Labor & Indus., 168 Wn. App. 14, 21, 277 P.3d 685 (2012).
7 No. 33808-8-III Orozco v. Dep 't ofLabor & Indus.
In performing this review, this court takes the record in the light most favorable to
the party who prevailed in superior court. Rogers, 151 Wn. App. at 180. This court does
not reweigh or rebalance the competing testimony and inferences, nor does it apply anew
the burden of persuasion. Id. at 180-81. When the record contains a battle of experts
regarding a disputed factual finding, this court defers to the superior court's credibility
determinations even if it would have weighed the experts' testimony differently. Cantu,
168 Wn. App. at 28.
The parties dispute whether the superior court's finding that Mr. Orozco's mental
health conditions were not proximately caused by the industrial injury is a finding of fact
subject to substantial evidence review or a conclusion of law subject to de novo review.
Proximate cause, at least in this context, is a question of fact-i.e., whethe~ Mr. Orozco's
mental health conditions would have occurred but for his 2006 industrial injury.
Proximate cause includes both factual causation and legal causation. Jenkins v.
Weyerhaeuser Co., 143 Wn. App. 246,254, 177 P.3d 180 (2008). Factual causation, or
"but for" causation, asks whether the result would have happened had the event not
occurred. Id. In contrast, legal causation asks whether, as a matter of logic, common
sense, justice, and policy, the connection between the event and the ultimate result is too
attenuated to impose liability. Kim v. Budget Rent A Car Sys., Inc., 143 Wn.2d 190,204,
8 No. 33808-8-III Orozco v. Dep 't ofLabor & Indus.
15 P.3d 1283 (2001). The fact finder determines factual causation, whereas the court
determines legal causation. Jenkins, 143 Wn. App. at 254. Here, the superior court's
finding that Mr. Orozco's mental health conditions were not proximately caused by the
industrial injury refers to factual causation, not legal causation. Thus, this court reviews
the Board record to determine whether substantial evidence supports the challenged
superior court finding.
B. LACK OF PROXIMATE CAUSE
RCW 51.32.160(1)(a) allows a closed workers' compensation claim to be
reopened for aggravation or worsening of a condition proximately caused by an industrial
injury. Eastwoodv. Dep't of Labor & Indus., 152 Wn. App. 652,657,219 P.3d 711
(2009). To succeed in an aggravation claim, a worker must establish the following four
elements: ( 1) the condition was worse after the original injury, (2) the worsening was
caused by the original injury, (3) the condition worsened between the terminal dates, and
(4) the worsening warranted more treatment or disability beyond what the Department
had provided. Cooper v. Dep't ofLabor & Indus., 188 Wn. App. 641,648,352 P.3d 189
(2015). Because lack of proximate cause is dispositive, we confine our analysis to this,
the second element.
9 No. 33808-8-III Orozco v. Dep 't ofLabor & Indus.
Mr. Orozco argues that Dr. Arenas testified that his injury caused his mental health
conditions. In so arguing, Mr. Orozco fails to address the crucial issue, which is whether
the superior court's findings are supported by substantial evidence. Instead, he argues
that there is substantial evidence in the record to support his desired finding. This
argument fails because this court does not reweigh or rebalance the competing testimony
and inferences, but rather determines whether substantial evidence supports the superior
court's findings.
Here, substantial evidence supports the superior court's finding that Mr. Orozco's
injury did not proximately cause his mental health conditions. Dr. Snodgrass testified that
there was no major psychiatric diagnosis for Mr. Orozco, that Mr. Orozco "did not have a
psychiatric condition that was causally related to the current injury," and that "there was
no clear evidence of a cognitive disorder related to a closed-head injury." CP at 223-24.
With regard to the 2009 examination, Dr. Snodgrass reiterated that "there was no
psychiatric condition that was causally related to the covered injury," and while Mr.
Orozco might have other factors weighing in, these were unrelated to the injury. CP at
236.
Mr. Orozco essentially challenges the superior court's determination that Dr.
Snodgrass's testimony was more credible and persuasive than Dr. Arenas's. This court
10 No. 33808-8-III Orozco v. Dep 't ofLabor & Indus.
must defer to the superior court's credibility determinations in a battle of the experts.
Because Dr. Snodgrass's testimony was sufficient to persuade a fair-minded, rational
person that Mr. Orozco's injury did not cause his mental health conditions, substantial
evidence supports the superior court's finding on lack of proximate cause.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Lawrence-B~y7 A.CJ. (
WE CONCUR: j
Pennell, J.